Chief Justice Burger: We will hear arguments next in Zant against Stephens.

Mr. Robinson, I think you may proceed whenever you are ready.

Mr. Robinson: Mr. Chief Justice, and may it please the Court, the case before the Court at this time involves a death sentence of Alpha Stephens which Petitioner here contends was lawfully imposed under the death penalty statute enacted by the Georgia General Assembly.

As this Court, I am sure, is aware, Georgia's present death penalty law under which Respondent Stephens was convicted and sentenced to death was a response to the concerns voiced by this Court in another Georgia case, Furman.

The concerns expressed there dealt with the unbridled discretion which was vested... which this Court perceived was vested in the jury at that time on the issue of whether or not a death penalty could be imposed.

The statute which was enacted as a response recognizes ten narrowly drawn circumstances, commonly referred to as the statutory aggravating circumstances, and upon a finding of one of those ten circumstances, a jury in Georgia is authorized to consider imposing the death penalty.

In this particular case at trial, the evidence before the jury at the first or guilt phase showed that Respondent Stephens was lawfully confined under some earlier sentences, that he escaped from lawful confinement, and that while he was on escape, he went on what can only be described as a crime spree, generally around the Bleckley County up to the Macon area, and the crime spree culminated in the... in a burglary and then an armed robbery, and a kidnapping, and ultimately in the murder by Respondent Stephens of a crippled man, Roy Asbell.

Part of the evidence introduced at that phase against Respondent Stephens was his confession.

Upon all the jury that was presented... Upon all the evidence that was presented to the jury at the guilt phase of trial, the jury found guilt beyond a reasonable doubt.

Immediately thereafter, it went into the second phase of Georgia's bifurcated procedure, the sentencing phase.

Generally, in Georgia, our sentencing phase allows the jury to consider all of the evidence which was before it during the initial stage of the trial, the guilt stage.

That was done in this case, and the jury was so instructed, that they could consider that.

Also, Georgia law allows the introduction of other evidence at the sentencing phase, both in extenuation, mitigation, or in aggravation.

Now, the aggravating evidence which may be introduced at this part of the trial, the sentencing phase of the trial, is not limited by Georgia law to those ten circumstances which are set forth in 27-2534.1, the so-called ten statutory aggravating circumstances.

Specific provision is made in Georgia law for non-statutory aggravating circumstances to be introduced into evidence at that phase of the trial, and particular reference is made in Georgia Code Section 27-2503 to a prior criminal conviction or convictions of a defendant which may be placed into evidence at the sentencing phase of the trial if the district attorney has given notice prior to trial of his intent to tender evidence of such convictions.

That was done in this case.

At the sentencing phase of the trial, therefore, the evidence before the jury was the rather gruesome nature of the crime itself, the prior convictions, certified copies of which were introduced by the district attorney, and also in mitigation, I presume, the testimony of Respondent Stephens himself, who took the stand and generally admitted a participation in the crime, but denied actually having pulled the trigger himself in murdering Roy Asbell.

The trial judge instructed, and that instruction is before the Court, of course, first of all, that the jury was authorized to and should consider all of the evidence before it.

Second, the jury was instructed by the trial judge that the jury must find one statutory aggravating circumstance before the jury was authorized to consider imposing the death penalty.

And finally, the trial judge made it clear to the jury that even if a statutory aggravating circumstance was found, a life sentence could be imposed.

So, the charge was proper under Georgia law.

The jury considered that evidence, and returned with a finding of two statutory aggravating circumstances, which are (b)(1) and (b)(9).

(b)(1) in effect is a two-part statutory aggravating circumstance, dealing first with whether the defendant has a prior record of capital felony offenses, and the second part of (b)(1) is whether the defendant has a substantial history of assaultive behavior.

The case proceeded from there to the Georgia Supreme Court for its mandatory statutory review, and the Georgia Supreme Court determined that the sentence imposed was not imposed under an influence of passion, prejudice, or other arbitrary factor, that it was neither disproportionate nor excessive to other sentences imposed in similar cases, but the Georgia Supreme Court did indicate that in an earlier decision of Arnold v. State, that portion of aggravating... statutory aggravating circumstance be one which involved showing a substantial history of assaultive behavior had been declared vague by that court and could not standing alone serve as the basis in Georgia for authorizing the jury to consider imposing the death penalty.

The Supreme Court did determine that there were the other two statutory aggravating circumstances, either one of which would authorize the jury to proceed to consider whether the death penalty was warranted.

Unidentified Justice: Let me see if I have this--

Mr. Robinson: Yes, sir.

Unidentified Justice: --relationship between the highest court of Georgia and the court of appeals of the Fifth Circuit.

The highest court of Georgia has construed the Georgia statute one way, and the court of appeals of the Fifth Circuit has construed it another way.

Is that correct?

Mr. Robinson: In effect, that's correct, Your Honor, yes, and... and the Fifth Circuit, at that time the Fifth Circuit Court of Appeals, also--

Unidentified Justice: Ordinarily, are we not bound by the construction given to a state statute by the highest court of the state?

Mr. Robinson: --I think so, Your Honor, and I think in part of the opinion, in some of the other issues that were raised below in the Fifth Circuit, the court of appeals did recognize that principle, and felt themselves bound by it.

In this particular instance, this single issue, they did not.

The Fifth Circuit's opinion is based upon two things, both of which Petitioner contends are erroneous.

First of all, the court of appeals determined that this Court's opinion in Stromberg v. California was applicable in the context of the sentencing phase of a death penalty case.

Stromberg is not applicable to the circumstances in this case before the Court for several reasons.

First of all, in Stromberg, the Court was concerned with a general verdict of guilt which had been imposed on the defendant in a sedition case under California's... there was a three-pronged sedition statute in that state, one of which was clearly unconstitutional and could not serve as the basis for a conviction.

The jury returned a verdict simply of guilty, and the reviewing court and this Court determined that you could not tell from that simple verdict whether the jury had made its decision in whole or in part on an unconstitutional portion of the statute.

The case now before the Court is a different case for a couple of reasons.

First of all, we are talking about a specialized procedure, the sentencing phase of a bifurcated death penalty trial, but second, and I think more important is that the jury did return specific findings in this case.

The jury found if you divide (b)(1) into the two subparts... the jury found both of them... then there were actually three statutory aggravating circumstances which the jury found to exist beyond a reasonable doubt.

Under Georgia law, any one circumstance serves the function with which this Court was concerned in Furman, that is, to narrow the class of cases for which the death penalty can be imposed.

Under Georgia law, one is not sentenced to death because he has a multiplicity of statutory aggravating circumstances.

An aggravating... a statutory aggravating circumstance authorizes the jury to consider imposing the death penalty, but if the death penalty is imposed, it is imposed not because the jury finds statutory aggravating circumstance (b)(1).

It is imposed because all of the evidence which is before the jury at the sentencing phase of the trial leads the jury to conclude that the death penalty is appropriate.

The discretion has already been narrowed because the jury has found beyond a reasonable doubt that a statutory aggravating circumstance exists.

If you will, the circumstance itself set forth in the statute simply serves as a bridge to get the jury from this point of the general class of murders to this point, having narrowed the focus of the jury's attention on that particular class of murders which the General Assembly of the State of Georgia has determined warrant the death penalty.

Unidentified Justice: Has the Georgia Supreme Court ever articulated the matter like this?

Mr. Robinson: The Georgia Supreme Court implicitly has made that holding, not only in this case but in several other cases over the last few years, Your Honor.

Unidentified Justice: Of course, if you thought for a moment that the jury imposed the death penalty because it added up three aggravating circumstances, and decided, well, all of them together justify the death penalty, but it might have been that if there was only one or two of them, they might have come to a different conclusion.

Mr. Robinson: No, Your Honor.

If I understand the question, I don't think so.

First of all--

Unidentified Justice: Well--

Mr. Robinson: --Excuse me.

Unidentified Justice: --couldn't you say that that is true and still defend the result here by just saying that under Georgia law the Georgia Supreme Court can have an independent view of the death penalty?

Mr. Robinson: And that is what occurs in this case, but let me point out one thing that I think is crucial to a determination of this case.

That is, the evidence that the jury considered--

Unidentified Justice: I understand.

Mr. Robinson: --was properly before the jury.

Unidentified Justice: Yes.

Mr. Robinson: There was not a single piece of the evidence, either in support of the circumstance declared unconstitutional in another case or any other circumstance, which was not properly before the jury and considered by it.

Unidentified Justice: Well, what is the jury's instruction in Georgia, that if you find these aggravating circumstances, you should consider whether the death penalty should be imposed based on all the evidence?

Is that it, or not?

Mr. Robinson: Yes, Your Honor.

That's an accurate summation of what the instruction would be.

First of all, generally, and in this case in particular, the jury is told they must consider all the evidence before it, either in aggravation or in mitigation.

Then the jury is instructed, and was in this case, that if they found one... that they could not impose the death penalty unless they found at least one statutory aggravating circumstance, and then thereafter even if that circumstance is found to exist, they are not mandated to impose the death penalty.

Unidentified Justice: I mean, your theory seems to be one that certainly would be plausible, but it doesn't seem to be spelled out that way to the jury in the instructions.

Mr. Robinson: Your Honor, the instruction reads that,

"If you recommend mercy, and I am reading from the joint Appendix at Page 18."

If you recommend mercy for the defendant, this will result in imprisonment for life of the defendant.

In such case it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find.

"And the courts below which have considered that very question on the issue of this instruction have indicated that is a proper instruction and was sufficient to indicate to the jury that they could find an aggravating circumstance and still not return a death penalty, and so I think it is clear."

"Georgia's--"

Unidentified Justice: Is it also your position that the Georgia Supreme court could determine sentencing de novo, regardless of what the jury did?

Mr. Robinson: --Your Honor, I am not sure if I understand the precise... a precise factual situation.

I think my answer to that would be no.

That is not the function of the Georgia Supreme Court, to sentence the defendant.

That is peculiarly the function of the jury, and the purpose of Georgia's statutory review is simply to determine whether that was imposed under passion, prejudice, or some other arbitrary factor, and that was done in this case.

They conducted that review.

I think Georgia's statutes also contemplate that same interpretation or the interpretation that we are giving this in Georgia Code Ann.

Section 26-3102.

I will read just briefly.

"A sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed."

So, from the clear reading of the statute, it appears to me that is what our statute contemplates, and that obviously has been the interpretation given to it by our supreme court.

Unidentified Justice: In your view, if they give three or four, and one of them is a valid one, the others are irrelevant.

Is that it?

Mr. Robinson: They are irrelevant to the determination of whether the jury can consider imposing the death penalty.

Yes, sir.

Now, that would get you into another question in another case of the type of evidence which was admitted in support of those statutory aggravating circumstances, but that is not a question before the Court, because in this case the evidence considered by the jury was properly before the jury, and the convictions were... there is no question--

Unidentified Justice: The Fifth Circuit... the Fifth Circuit apparently, as I read the opinion, thought that the consideration of the evidence on prior conduct generally had an undue and inappropriate impact on the weight of the record of convictions.

Is that about it?

Mr. Robinson: --That is about the gist of their amended opinion.

Their first opinion, as we pointed out to the Court, was simply a wrong interpretation of Georgia law.

The court below indicated that this evidence was not properly considered by the jury, because it was in support of the unconstitutionally vague circumstance, and therefore they should not have considered it.

We petitioned for rehearing, and that was granted.

The opinion was changed, and they thereafter said, well, so the evidence was properly before the jury, but perhaps they considered it too much.

That in effect is what the opinion said.

Unidentified Justice: In talking about the role of the Georgia Supreme Court, at least you have to say, don't you, that the Georgia Supreme Court has concluded in this case and in others that the jury would not have come to any different conclusion.

At least, they have not remanded the case.

They did not after invalidating one of these aggravating circumstances remand for a new penalty trial.

They themselves affirmed the death penalty.

Mr. Robinson: I think it is implicit in that court's opinion that it would not be reasonable to--

Unidentified Justice: Well, they certainly didn't remand.

Mr. Robinson: --That's correct.

I would agree.

Unidentified Justice: And they have in a lot of other cases.

Mr. Robinson: I would agree, Your Honor.

Yes.

Unidentified Justice: Yes.

Counsel, as you read this Court's decision in Gregg, do you think that the Gregg opinions assume that the aggravating circumstances that are enumerated by the sentencer will in fact guide the discretion?

Mr. Robinson: Yes, Your Honor.

I think I was about... I think I was anticipating Your Honor's question, and was going to give you a different answer.

The purpose of a charge on the statutory aggravating circumstances is, yes, to guide the discretion of the jury in determining whether this case falls within the class of cases for which a death penalty may be imposed, but I don't think either the Georgia General Assembly or this Court in its review in Gregg of the law as enacted contemplated that a finding of a statutory aggravating circumstance mandated a death penalty.

Unidentified Justice: No, but do you think that Gregg assumes that the jury, for instance in this case, would be guided by the presence or absence of the enumerated aggravating circumstances?

Mr. Robinson: Your Honor, guided in the sense that it would tell the jury whether if the evidence supported that circumstance they could impose the death penalty, but not in the sense that the court below viewed it, as giving some kind of undue weight to the evidence which supported it.

In that regard, as I have said, the evidence was properly before the jury, and I am not sure a jury can give undue weight to admissible evidence.

There is some point in any case, and in a death case, I think, where there is some... some discretion which remains in the jury, and I think this Court recognized that in Gregg, and Lockett, and in all the death penalty cases that the Court has decided in recent times.

I don't think the purpose was to eliminate the jury's discretion entirely.

I also think that this Court understood, as I read the opinion in Gregg, I think that the majority of the Court understood that the purpose was just as I have stated, that there was a dual finding by a jury once you got to the sentencing phase, and again, I use my argument of the bridge.

You have your statutory aggravating circumstance which gets the jury into the class of case for which they can consider all of the evidence.

Now--

Unidentified Justice: And you think that is what the majority in this Court was articulating in Gregg?

Mr. Robinson: --I think that's one thing that this Court understood, yes, I certainly do, in that opinion.

Since then, the Court has indicated, in more than one case, that the function of the death penalty phase of a trial is to enable a jury to make a rational and intelligent decision on whether the death penalty is appropriate based upon the offense which was committed and the character of the person who committed the offense.

Again, the evidence which was placed in aggravation at the sentencing phase assisted the jury in doing just that.

It gave the jury some further guidance on just exactly, what sort of defendant they were dealing with.

It was evidence on the character of the defendant.

Mr. Chief Justice, I will reserve any remaining time.

Unidentified Justice: Let me just ask you one more question.

Mr. Robinson: Yes, sir.

Unidentified Justice: Is there... do you suppose the necessity to find one or more of the specified or charged aggravating circumstances would make admissible evidence at the penalty trial that otherwise might not be admissible?

I can ask the question another way.

Do you suppose ever invalidating an aggravating circumstance would mean that a certain category of evidence that had been admitted was not admissible at all?

Mr. Robinson: It's conceivable that that could happen, yes.

Unidentified Justice: But you are careful in this case to say that that wasn't so.

Mr. Robinson: It is not true in this case.

And again, Your Honor, I think the very reason that a statutory aggravating circumstance might be invalidated, except for the particular one we are dealing with here, would in all likelihood be because either of a failure of evidence to support it or because some part of the evidence which was introduced in support of the circumstance was not properly--

Unidentified Justice: Well, the prosecution might charge a whole list of aggravating circumstances, and the jury might only find one, but that wouldn't mean that the evidence as to aggravating circumstances that weren't found was inadmissible.

Unidentified Justice: Well, but the jury is certainly instructed as to what they are.

Mr. Robinson: --By the judge.

Yes, that's correct.

Unidentified Justice: Yes, Well, suppose there was an instance that you say you could conceive of, where the invalidation of an aggravating circumstance would mean that a certain part of the evidence before the jury was absolutely inadmissible.

Mr. Robinson: That wouldn't require an automatic vacating of a death penalty, but that would require some further review--

Unidentified Justice: Then you would really get up against as to what the supreme court would say, whether the jury would arrive at the same conclusion or not.

Mr. Robinson: --You would get closer--

Unidentified Justice: And whether that was consistent with Georgia law or not.

Mr. Robinson: --You would get closer to requiring the reviewing court to intervene in the province of the jury.

Unidentified Justice: Yes.

Mr. Robinson: And I think it would be necessitated under those circumstances.

Unidentified Justice: Counsel, may I ask you one question?

Mr. Robinson: Yes, sir.

Unidentified Justice: Under Georgia law, would it be error to charge on an aggravating circumstance with respect to which no evidence had been introduced?

Has to Georgia court ever faced that question?

Mr. Robinson: Your Honor, I don' t believe... in my knowledge, that... a particular case involving that has not arisen.

I would assume... well, I shouldn't assume, since our court hasn't said whether it is or is not.

Unidentified Justice: In a way, that might be what happened here.

Although there is evidence supporting it, they shouldn't have charged, and had they known that the circumstance was invalid they wouldn't have charged on that circumstance.

Mr. Robinson: Well... oh, of course, and had the Arnold case been decided before trial in this instance, the trial judge would simply have charged on the first part of (b)(1).

I would like to point out one other thing before I rest.

That is, the evidence which was submitted in support of (b)(1) even now, after Arnold has struck down a portion of (b)(1), would still be admissible, because the first part of our first statutory aggravating circumstance allows you to introduce evidence of prior capital felony convictions, and the two armed robberies involved and the murder would come in under the first prong of that statute.

So, even after Arnold, that evidence is still admissible, and it is still admissible under (b)(1).

The burglaries would not have come in under (b)(1) anyway, because generally that is not assaultive behavior, and they would come in under 27-2503, and the district attorney must have presumed he was submitting them under 2503, because he tendered notice to the defendant prior to trial as that statute requires.

Thank you.

Chief Justice Burger: Mr. Boger.

ORAL ARGUMENT OF JOHN CHARLES BOGER, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Boger: Mr. Chief Justice, and may it please the Court, let me begin by restating the central fact of this case, which is that Alpha Stephens' jury received an erroneous jury instruction which misguided their deliberations on the question of whether he should receive a life sentence or a death sentence.

The State of Georgia has conceded this point, as they must, since the record makes it clear that the instruction was given, that the jury was guided by it, indeed, that they expressly relied upon it, at least in part, in imposing a decision to give Mr. Stephens a death sentence.

The question presented--

Unidentified Justice: In effect, did the Georgia Supreme Court say that that was irrelevant?

Mr. Boger: --The Georgia Supreme Court, Mr. Chief Justice, made two determinations necessarily in its opinion in Stephens on appeal.

Unidentified Justice: Well, almost necessarily, too, they had to decide that what you have just said was irrelevant.

Mr. Boger: The first... the first determination they made is that the instruction was erroneous, and should not have been given.

The second one, which I submit is a constitutional determination, made without reflection, without any express discussion by the court, is that this erroneous instruction made no difference.

So, yes, Mr. Chief Justice, I agree with you that they did determine it was irrelevant, and I think that presents--

Unidentified Justice: Would that be another way of saying it was harmless error?

Mr. Boger: --I don't believe so, Your Honor.

They didn't discuss it in terms of whether or not there was harm.

They only said that since there were two valid aggravating circumstances, the sentence remains unimpaired.

That presents the kind of questions which I hope to discuss throughout the course of this argument, raised in the Stromberg line of cases, raised in fact in this Court's opinion--

Unidentified Justice: Let me put to you the question I put to your friend.

Ordinarily, are we not bound by the construction given to a state statute by the highest court of the state?

Mr. Boger: --You are bound by constructions of the statute insofar as they do not rest upon a federal constitutional ground.

My submission is that the Supreme Court of Georgia as a statutory matter determined that this was an erroneous instruction.

As a constitutional matter, it determined that that made no difference.

It did not articulate that as a statutory ground.

It simply said, that makes no difference.

Our submission is that Stromberg versus California and the line of cases that flow from that case, and the Eighth Amendment cases, Gregg and Gardner and Beck, and so forth, make it clear that that judgment, the constitutional judgment is wrong.

The question presented for this Court, I submit, is whether a death sentence admittedly imposed in partial reliance upon an impermissible factor can be allowed to stand.

This is not a question wholly without precedent, of course, for many juries have been misinstructed in the past, and as I mentioned in responding, Mr. Chief Justice, to your earlier argument, this Court has developed a general rule over the past 50 years to govern just this question.

The rule is as follows.

If it is possible that the jury's verdict rests in whole or in part on an unconstitutional or impermissible ground, if an appellate court, in other words, cannot assure itself that the impermissible factor did not play a part in the jury's determination to reach that verdict, then the verdict must be set aside, and another properly instructed jury must reconsider the issue.

The irony of the State of Georgia's position before this Court is that it must somehow contend that this general rule, widely employed in state and federal criminal cases, should not be employed in Mr. Stephens' case, that somehow a lower standard must govern.

Unidentified Justice: May I interrupt you with a question?

Mr. Boger: Surely.

Unidentified Justice: Supposing that we set aside the verdict or the penalty, sent it back for another trial on the penalty phase, and the jury again returned a death penalty verdict on the two permissible statutory aggravating circumstances, and they had the same evidence before them they had here.

Then they added a footnote to their verdict and said, we also relied on the fact that in our judgment this man had an assaultive history, or whatever the language is of the impermissible aggravating circumstance.

Would that be a permissible thing for them to do?

Mr. Boger: I am sorry.

Absent an instruction by the judge on the impermissible--

Unidentified Justice: That's right, but the same evidence went in, and the jury... and maybe the prosecutor argued, because the argument need not be limited to the specific aggravating circumstances, as I understand it, just argued that one of the reasons you should consider sentencing this man to death is that history shows, and then they use the language of the impermissible circumstance.

Mr. Boger: --Well, assuming those facts, there would be no constitutional violation.

Unidentified Justice: Now, how is this case different?

Mr. Boger: This case is different because what the instruction given to the jury did was focus the jury's attention on this factor, this substantial history, if one would, of serious criminal conviction.

Unidentified Justice: What in the instruction focuses the jury on that fact?

Mr. Boger: Well, let's look at the instruction, at Pages 18 and 19 of the Appendix, because I think it is important to be aware of the extent to which the statutory aggravating circumstances under this instruction are the focus of the jury's entire deliberation.

As counsel for the state pointed out, at one point on Page 18 the judge briefly says, you may consider any of the aggravating or mitigating factors before you.

But then, he lists in order each of the aggravating circumstances found in the statute on which the prosecution has attempted to rely.

He then says, at the top of Page 19,

"These possible statutory circumstances are stated in writing, and will be out with you during your deliberation on the sentencing phase."

He continues.

"They are in writing here, and I shall send this out with you."

"If the jury verdict on sentencing fixes punishment at death, you shall designate in writing."

so they must rewrite themselves,

"signed by the foreman, the aggravating circumstance or circumstances which you found beyond a reasonable doubt."

He goes on, and I need not repeat it... the Court can read for itself, three more times in the course of his instruction to focus the jury's attention, and one can presume its deliberations in the jury room on the statutory aggravating circumstances.

There is no similar focus of the jury's deliberation on these non-statutory prior convictions.

Unidentified Justice: But the focus in the instruction is, unless one or more of these is found to have been proven, you cannot impose the death penalty.

Mr. Boger: That's correct, Your Honor.

Unidentified Justice: It doesn't say that the number of aggravating circumstances which you find shall affect your deliberations on whether to impose the death penalty.

Or do you read it that way?

Mr. Boger: One of the deficiencies of the Georgia statutory scheme is that it is not made clear, and certainly this charge does not make clear to a jury exactly what it is supposed to do with these statutory aggravating circumstances in its deliberations.

It is, however, not at all unreasonable to suppose that the jury in the jury room will be guided by the attention that has been focused on these three factors which the foreman himself must write out one by one if they find.

Unidentified Justice: Well, hasn't the Georgia Supreme Court, though, in effect said that the aggravating circumstances just... they serve the purpose of telling the jury when you can consider the death penalty?

Mr. Boger: No, Justice--

Unidentified Justice: Not whether you should impose it?

Mr. Boger: --Justice White, I don't think that is what the Georgia Supreme Court has said.

Indeed, the statutory scheme contemplates--

Unidentified Justice: Well, it certainly doesn't agree with you.

Mr. Boger: --No, because I think--

Unidentified Justice: How does it disagree with you?

Mr. Boger: --I think the Georgia Supreme Court has answered incorrectly the constitutional matter, the effect of an impermissible factor being fed into the jury's deliberations.

The entire promise of the State of Georgia when it came before this Court in Gregg was that the statutory aggravating circumstances which had been enumerated by the legislature would guide the jury's discretion, would take it away from an unfettered consideration of all of the evidence that had been presented at the sentencing phase--

Unidentified Justice: Well, why did they... the Georgia Supreme Court refuses to remand, it did in this case, when it found an invalid aggravating circumstance.

Mr. Boger: --That's correct, Justice White.

Unidentified Justice: Why did it refuse?

Mr. Boger: Because it made an erroneous constitutional judgment.

Unidentified Justice: What did it say?

What do you think it concluded?

Mr. Boger: One of the difficulties with a clear understanding of the Georgia Supreme Court's opinion is that they do not address the question at all.

What they do not do--

Unidentified Justice: Well, I think it is just as... isn't it just as reasonable it went through the catechism that your colleague described?

Mr. Boger: --No, Justice White, my colleague acknowledged that the State of Georgia either as a statutory matter or as a matter of interpretation by the Georgia Supreme Court has not adopted the theory that you have articulated in Drake--

Unidentified Justice: No, that isn't what I am talking about.

I am talking about... I am talking about the Georgia Supreme Court says, the only function of the aggravating circumstances is to... is to put the... if the jury finds one or more of them, they are then in a position to consider the death penalty.

Mr. Boger: --If that were the case--

Unidentified Justice: And that then they decide on all the evidence.

That's the way it... that's the way it works in Georgia.

That's his submission.

Do you... Is it reasonable to think that the... Isn't it possible the Georgia Supreme Court was thinking on this line?

Mr. Boger: --I suppose it is conceivable.

They certainly have never articulated it.

It is contrary to the statute.

It is contrary to the way the charge is given, because the charge does not tell the jury to stop after it finds one aggravating circumstance.

Unidentified Justice: It doesn't tell them not to, either.

Well, no, of course it doesn't tell them to stop.

Mr. Boger: But they indeed must go on, and to spell out each one of the three or four that they find.

Unidentified Justice: Sure.

I would think they would.

That is irrelevant to my point.

Supposing, Mr. Boger, the instruction had a couple of sentences additional, and said, the number of... as long as you find one, the number of aggravating circumstances that you find shall be totally irrelevant in your deliberations.

Supposing they said that, because we want you to decide whether or not to impose the death penalty on the basis of the entire record, and the mitigating circumstances, and so forth.

Would there be constitutional error if there were such an instruction given?

Mr. Boger: That would violate the Georgia statute, which seems to contemplate that the--

Unidentified Justice: They must identify each one they find, but then the judge goes on and says, after identifying each one, you may not let your judgment as to whether or not to impose the death penalty be influenced at all by the number you have found, so long as you find at least one.

Supposing that was the instruction.

Mr. Boger: --Well, I think under the system that was presented to this Court at the time of Gregg, that would probably be unconstitutional, because it would have told the jury that it could not rely on considerations articulated by the legislature as to the particular factors which serve cumulatively to aggravate a capital... or a murder, and to make it... In other words, while the jury's processes are something that we cannot retrospectively know, it is certainly reasonable to assume, and now I am trying to draw on the line that this Court developed in the Sandstrom versus Montana case, it would certainly be reasonable for a juror presented with the instruction that is here on Pages 18 and 19, sitting in a jury room, asked to write out every aggravating circumstance that it found, to conclude that the more aggravating circumstances that are found, the more aggravated a case this is, and the more likely it is that the legislature makes a judgment that this is a case in which death is warranted.

Because we cannot know what the jury did, because that is also a reasonable way to look at their deliberations, the problem that Stromberg raises is... is before us.

Absent--

Unidentified Justice: Well, Mr. Boger, you don't... you don't suggest that... you don't suggest that it would be unconstitutional for Georgia to vest the sentencing authority in its... just in its judiciary.

Mr. Boger: --That may raise constitutional questions which of course are not... are not before us.

There may be a constitutional right in a capital case to jury sentencing.

Unidentified Justice: Well, that has never been... we have certainly upheld--

Mr. Boger: Well, you reserve that question once again in the Lockett versus Ohio case, and as I noted in our brief, the Fifth Circuit under very--

Unidentified Justice: --Well, we have never decided, though, that there is a constitutional right to jury sentencing.

Mr. Boger: --That is correct, Justice White, and that is really not before the Court.

What is before the Court, though, is a system--

Unidentified Justice: Didn't we uphold... Didn't we uphold the Florida--

--In Proffitt we upheld the Florida scheme, which doesn't require the jury to be the last word on--

Mr. Boger: --That's correct.

There is jury input into the sentencing in Proffitt, and in Lockett the Court specifically... the question.

Unidentified Justice: --So it may not be Georgia law that the Supreme Court of Georgia could decide that despite the invalidation of an aggravating circumstance, that it in its wisdom would sustain the death penalty.

That may not be Georgia law, but it wouldn't be unconstitutional.

Mr. Boger: It could pose constitutional problems.

Unidentified Justice: I know, but we have never decided it.

It would take--

Mr. Boger: That's correct.

Unidentified Justice: --You would have to vary somewhat from Proffitt, wouldn't you?

Mr. Boger: That's correct.

The reason it, of course, need not be decided by this Court is that the Attorney General's office here has conceded that the Georgia system does not permit the Georgia Supreme Court to sit as a de novo sentencer and to make the judgment about whether an individual--

Unidentified Justice: But it certainly takes the position that the Georgia Supreme Court can in effect say that the invalidation of this aggravating circumstance would not have made any difference to the jury.

Mr. Boger: --I don't believe that is what the Georgia Supreme Court held.

It simply held--

Unidentified Justice: Well, what does it say?

What do you think it says?

Mr. Boger: --It holds simply as a matter of law that the verdict is unimpaired, and it is our judgment that that is a constitutional question.

Unidentified Justice: All right.

All right.

Any way you want to put it.

Didn't it necessarily hold that if one... if one ground is valid, the position of the others, no matter how many or how few, is irrelevant, or harmless error, or whatever?

Mr. Boger: It necessarily held that, yes, Mr. Chief Justice.

But that question itself impinges on constitutional values.

One, I suppose, is a state supreme court could not simply hold that the failure to charge on an element of the crime would not require reversal just because the state supreme court says so.

Indeed, Justice Frankfurter in the Bollenbach case, which we have cited in our brief, makes the point that the appellate court cannot simply read guilt out of the record, that proper standards must guide a jury's deliberation, and if in fact the jury has been misguided on an essential element of the case, there is no way that an appellate court can overcome that simply as a matter of fiat or as a matter of state statutory construction.

This is not... this is not a case that presents a statutory construction phase... issue.

It is a case in which the issue is whether one can disregard what is an admittedly erroneous finding which the jury made in reliance upon an instruction which should not have been given, which entered into its calculus in some way that we cannot retrospectively determine in deciding whether Mr. Stephens should live or die.

The whole thrust of this Court's Eighth Amendment jurisprudence is that the information given to the jury at a sentencing phase is not itself sufficient, that there needs be, that there must be careful guidance of the jury in its deliberations, as the opinion of Justices Stephens and Powell and Stewart for the Court said in Gregg, and if I may be permitted a short quote, that

"The provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used, since members of a jury have very little experience in sentencing, they are unfamiliar and unlikely to be skilled in dealing with the information they are given."

The response that this Court identified as Georgia's response, which it approved in Gregg, was the provision of guided jury discretion, telling the jury exactly what factors, as it put it,

"the state representing organized society deems particularly relevant to the sentencing decision."

And the Court in Gregg went on to point out that it would be virtually unthinkable to follow any other course in a system governed by prior precedents and fixed rules of law.

When erroneous instructions are given, the Court said in Gregg, reversal is often required.

That is what we have before the Court here, a matter of an erroneous instruction.

The state has attempted to avoid this central question by simply making the argument that one aggravating circumstance is enough.

That argument would be true if and only if death were required whenever the jury found one aggravating circumstance, or if this were a system under which multiple death sentences were given for each aggravating circumstance found, much like a multi-count indictment.

Unidentified Justice: May I ask you in that connection, if in this case the jury had come in and simply found the first aggravating circumstance, nothing more, and then imposed the death sentence, under Georgia law that would be valid, I take it.

Would you have any objection to the validity of that?

Mr. Boger: As a Fourteenth Amendment matter, there is no problem with that, because then we can know that the jury did not rely at least in part on the unconstitutional ground.

Unidentified Justice: Yes.

Mr. Boger: As an Eighth Amendment matter, there may be somewhat more problems, because an irrelevant factor was introduced into their consideration, but since they didn't return on it, and didn't rely upon it, I suspect under that case that the proper result would be, that would be a valid sentence.

Unidentified Justice: Let me take the language of your response.

You said,

"then we would know that the jury didn't rely."

Would it be more accurate to say, then we would know that the jury said it did not rely?

And is there any way of psychoanalyzing a jury to really find out what influenced them?

Mr. Boger: No, of course not, Mr. Chief Justice.

Unidentified Justice: We can't really ever find out.

Mr. Boger: Special findings are as close as we can get.

It is the state's position, it seems to me, their necessary position is that somehow we can know what the jury would have done.

Indeed, insofar as this is the Georgia State Supreme Court's opinion, it is the Georgia Supreme Court's opinion which I submit is unwarranted, that they can somehow know what the jury would have done.

Unidentified Justice: Mr. Boger, may I just as this one question?

Is it correct that you are really not arguing that it would be impermissible for them to rely on the assaultive behavior which would be described in that aggravating circumstance?

Rather, as I understand your argument, it is that they have perhaps mistakenly relied on the fact that the legislature thinks that is a special reason for imposing the death sentence?

Mr. Boger: That's correct.

We have not taken the position that this evidence could not have come in under Georgia law.

Unidentified Justice: Or that they couldn't rely on it under a proper instruction.

Mr. Boger: We have not taken that position in this case.

That's correct.

But the entire purpose of jury instruction, and certainly these instructions, was to focus their attention, in effect communicate them... to them something about what the State of Georgia, organized society thought made this case specially aggravated.

It is because of that impermissible factor whose weight we cannot know, but whose weight we can assume, at least with respect to some reasonable jurors, made a difference, that we must reverse--

Unidentified Justice: Mr. Boger, a number of times you have spoken of the... that the Court in Gregg said so and so.

That isn't technically correct, is it?

Mr. Boger: --That's correct, Your Honor.

I was speaking of an opinion by three Members for the Court.

But in Justice White's opinion--

Unidentified Justice: Well, three Members can't speak for the Court, as Justice Blackmun has just implied.

Three Members speak for three Members in a plurality.

Mr. Boger: --Justice White's opinion, as well, though, for three additional Members of the Court also highlighted and underlined the role that guided jury discretion as a guarantor that the arbitrariness, the capriciousness which had been identified by this Court in Furman would not recur.

It was precisely the role of the statutory aggravating circumstances to channel, to confine within boundaries the jury's deliberation about those factors which should be most important in its judgment.

Justice White and, I guess, Chief Justice... the Chief Justice and that opinion as well emphasized the statutory purpose of these aggravating factors as well, so that I feel confident in saying a majority of this Court has understood those factors as being central in avoiding the question of arbitrariness.

Unidentified Justice: Mr. Boger, would you take the same position any time the Georgia Supreme Court says the evidence was insufficient to sustain a particular aggravating circumstance?

Mr. Boger: Yes, I would, although the Court need not reach that question.

Unidentified Justice: I know, but the way you put it, it would seem necessarily to reach that... that--

Mr. Boger: If the court has relied... if the jury has relied on--

Unidentified Justice: --Well, the jury finds four aggravating circumstances, and it has been instructed, according to your theory, that... that these aggravating circumstances, each one of them is a special reason for imposing the death penalty, and the Georgia Supreme Court says, well, there is just not enough evidence to sustain two of the four.

I would think your position is--

Mr. Boger: --That's correct, Your Honor.

Unidentified Justice: --would be that there would have to be a new sentencing trial.

Mr. Boger: That's correct.

And that... the point which I wanted to proceed to that you have made is, we are not talking about letting Mr. Stephens go back--

Unidentified Justice: No.

Mr. Boger: --to receive a life sentence, but simply to ensure ourselves that a jury which has been properly instructed, which has relied on factors that are properly before it, here factors as to which there is sufficient evidence, has reached a determination that appears just.

This is really the point that the Court made in Gardner, where it said a death sentence must be and appear to be based upon reason rather than caprice or emotion.

If we can know to a certainty a jury relied on a factor as to which there was no evidence, that verdict is not based upon reason and must be reversed.

Unidentified Justice: Counsel, has it been argued in Georgia that assuming this were affirmed, that it is invalid to simply return it for the sentencing phase, because the jury is supposed to hear and rely on all the evidence introduced at the trial?

How do you handle that?

Mr. Boger: Resentencings in Georgia are a common occurrence, in cases in which for one reason or another the sentencing proceeding is reversed.

There have been dozens of cases where prosecutors have reproceeded either with the original evidence or in part the evidence in addition to some transcript testimony from the first trial.

That would present no serious problems under the Georgia system.

The real... the real question before the Court, which the state has attempted to avoid by two arguments, is whether, as I have stated before, once we are certain that an impermissible factor has interjected itself, and lacking assurance as to how this factor affected the jury, we can uphold that sentencing verdict.

The State of Georgia has proposed one argument to avoid this question by saying that the evidence was before the court and therefore, does it make any difference that the sentencing instruction was inappropriate?

That argument, though, misses the whole thrust that we have discussed over the last 15 minutes of the role of sentencing instructions in a capital case, the function of focusing the jury's attention on matters that the state considers particularly important, and should guide the jury's deliberations to avoid arbitrariness.

So, that argument really cannot be sustained.

The argument that one or two aggravating circumstances themselves suffice, and therefore we need not concern ourselves generally with the third invalid circumstance would prevail only if death followed inexorably from the finding of one aggravating circumstance or two, but of course it does not.

The Georgia court is required to simultaneously consider all the factors which it has been given, and we simply can't determine in retrospect how it may have carried out that responsibility and weighed the impermissible factor together with those which were permissible.

Therefore, we are left with the central question.

When we know the death penalty has been imposed in part on an impermissible ground, may that sentence be affirmed?

The two grounds of authority upon which we have relied in our brief and rely here today are the Fourteenth Amendment ground first articulated by this Court in Stromberg versus California, where the Court held that if we cannot know but that the Jury may have rested its verdict on an impermissible ground, we must reverse.

That opinion in Stromberg has been consistently followed.

Indeed, it has been extended to an extent in the Street case, where this Court held that if it is possible that the jury may have relied even in part on an unconstitutional factor, the verdict must be reversed.

Here we can go beyond Street, because we know that it relied in part, it told us so in its sentencing verdict.

Unidentified Justice: Well, but this is not an unconstitutional factor.

The factor you are talking about is the factor that the Georgia legislature may have conveyed the impression that death ought to be imposed when this factor is present.

That is not unconstitutional.

Mr. Boger: Well, the Georgia Supreme Court has held that that factor itself introduces impermissible arbitrariness, and therefore that factor should not be considered.

Unidentified Justice: Did they say it should not be considered, or could not serve as a jurisdictional predicate for the death sentence?

Mr. Boger: As a factor, I think they made it clear that it should not have been charged.

Unidentified Justice: Does that mean that if there were a retrial... now, here you have two theories for admissibility, but if there were no... say there was evidence that would tend to show that the person was a particularly bad man and ought to die, such as prior assaultive behavior, but there is no statutory aggravating circumstance that describes the evidence of that character.

Is that evidence admissible or inadmissible as a matter of Georgia law?

Mr. Boger: As a matter of Georgia law, it is admissible.

Evidence of--

Unidentified Justice: It is admissible.

Mr. Boger: --Evidence of prior criminal convictions is admissible, and other evidence may be admissible to refute any mitigating evidence that is set forward by the defendant.

Unidentified Justice: And I suppose as a matter of federal law anything goes at a sentencing hearing, pretty much.

Mr. Boger: I am not convinced as a constitutional matter that is the case.

We mentioned in our brief the Fifth Circuit has recently decided a case involving somewhat different circumstances in Florida, holding that under the Eighth Amendment, that non... evidence of non-statutory aggravating factors may not be admitted.

We have not relied on that argument on behalf of Mr. Stephens, and have conceded for purposes of this case that the Georgia statute certainly would have permitted the evidence which came in here.

Beyond, then, the Stromberg line extended to Street, made in effect clearer than Street, because we have the special sentencing verdict which shows us... the special sentencing finding which shows us that Mr. Stephens' jury did rely upon an impermissible factor, we have the Eighth Amendment line, which of course we have discussed to some extent.

The court of appeals acted faithfully, we submit, to this Court's judgment in Gregg, that statutory aggravating circumstances were part of a system of guidance, of jury discretion which was essential to avoid arbitrary and capricious jury results.

For that reason, we urge that the court of appeals' judgment be affirmed.

I think the argument of Respondent in this case misses the point in that a death penalty in the State of Georgia is not imposed, as was said several times, based upon a statutory aggravating circumstance.

Rather, it is based upon the evidence which is adduced in support of that--

Unidentified Justice: How do you know that?

Is it in a statute or--

Mr. Robinson: --That's... yes, 25... 26-3102 specifically tells a specific instruction that a jury first must find an aggravating circumstance to exist, and then consider whether to recommend imposing the death penalty.

Unidentified Justice: --Based on what?

Mr. Robinson: Based on all the evidence before it, and that is what the jury was--

Unidentified Justice: But it doesn't say to ignore the fact that here is a statutory aggravating circumstance.

Your colleague suggests that the designation of an aggravating circumstance is a message to the jury that if it finds it, this is more of a reason to impose the death penalty.

Mr. Robinson: --Your Honor, particularly in this case, I don't think that is a--

Unidentified Justice: I think the Georgia Supreme Court has decided to the contrary, it must have.

Mr. Robinson: --And I don't think that's a reasonable interpretation in this case anyway, to assume that that one instruction which, as I am sure the Court has already read the court's instruction, doesn't focus on the statutory circumstances any more than just the evidence in general.

The court instructed the trial jury to consider, first of all, all the evidence, the non-statutory and the mitigating, and then it listed one time these... each of these three--

Unidentified Justice: Well, Mr. Robinson--

Mr. Robinson: --Yes, sir.

Unidentified Justice: --this conviction was way back in 1975 or 1976?

Mr. Robinson: Early... January of 1975, Your Honor.

Unidentified Justice: 1975, and then there was state collateral?

Mr. Robinson: Yes, Your Honor, that's correct.

Unidentified Justice: And now it's federal?

Mr. Robinson: Yes.

Unidentified Justice: And a lot of water has gone over the dam since then in terms of aggravating circumstances, invalidating aggravating circumstances.

When was (b)(7) declared invalid?

Mr. Robinson: (b)(7) has never been declared invalid.

Unidentified Justice: I mean void, void for vagueness.

Mr. Robinson: In the Godfrey case, Your Honor?

Unidentified Justice: Yes.

Mr. Robinson: That was... I believe that was 1978.

Unidentified Justice: Yes, that was after... even after this conviction.

Mr. Robinson: Yes.

Unidentified Justice: And the Georgia Supreme Court has had a lot of experience with cases that involved (b)(7) as just one of the circumstances.

Mr. Robinson: Yes, Your Honor.

That's right--

Unidentified Justice: Has there ever... Is there any subsequent case to the decision in this case where the Georgia Supreme Court has articulated or spelled out the reasons for its sustaining death penalties where one of the aggravating circumstances has been declared invalid or as not sustained by the evidence?

Mr. Robinson: --Your Honor, I cannot cite--

Unidentified Justice: Haven't they written that at some--

Mr. Robinson: --I can't cite you to a case where the Supreme Court of our state articulates the exact reason that I am telling you right here in my language; however, the thrust of all the cases in which a circumstance has been found invalid and other statutory aggravating circumstances exist plainly indicate to me that that is what the supreme court's reasoning is.

Unidentified Justice: --Well, they certainly have sustained a lot of convictions since Godfrey where the (b)(7) was just one of several... is it (b)(7)?

Mr. Robinson: (b)(7) is the--

Unidentified Justice: Yes, where the... where that was just one of the aggravating circumstances the jury had found.

Mr. Robinson: --Yes, Your Honor.

Unidentified Justice: Mr. Attorney General?

Mr. Robinson: Yes, sir.

Unidentified Justice: Assuming in this case that in the jury room one or more jurors said, we don't agree with One and Two, but we do see some merit in Three, if you don't include Three, we will not join the One and Two, would that be all right?

Mr. Robinson: Well, Your Honor, I think the jury--

Unidentified Justice: And I ought to warn you, my next question is, while we can't be sure that happened, but it could have happened.

Mr. Robinson: --Your Honor, I couldn't speculate on what that jury may have said, of course.

Unidentified Justice: But you can... that it could have happened.

Mr. Robinson: Well, is it reasonable to assume that that happens, particularly when the jury is to return... when all the jury is to return that unanimous finding written down there?

I think the reasonable assumption must be that all jurors concurred, and particularly--

Unidentified Justice: Well, they did, according to my imaginative story.

They did agree, but they agreed only because of the... unconstitutional one.

That is the only reason they agreed, these One or Two.

Mr. Robinson: --Well--

Unidentified Justice: It is sort of hypothetical.

Mr. Robinson: --Your Honor--

Unidentified Justice: Mr. Attorney General, let's assume for a moment hypothetically that there is some tension between some prior opinion of the Georgia Supreme Court and their opinion in this case.

That tension, if there is tension, assuming that, this is the latest construction of the highest court of Georgia on what the state law means, is it not?

Mr. Robinson: --Yes, Your Honor.

That's correct.

Unidentified Justice: Well, it is still in 1976, and there must be a lot of later ones.

Mr. Robinson: But the same principle has been stated, Your Honor, if I understood the Chief Justice's question.

That is what the present interpretation is, and that is the latest interpretation.